ESTHON v. FRN & ANOR
(2020)LCN/14134(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, April 22, 2020
CA/YL/194CN/19
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
BINANU RUNDE ESTHON APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. SHEHU MUSTAPHA RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT CAN CONVICT A DEFENDANT OF A LESSER OFFENCE UNDER A DIFFERENT LAW COVERING THE LESSER OFFENCE
It is the law that a Court cannot convict a defendant of a lesser offence unless that offence is under the same law which the defendant has been charged unless; the charge is amended and prosecuted for the lesser offence under a different law covering the lesser offence. For the trial Court to have secured a conviction for a lesser offence, it must be under the law or Act under which the main or composite offence was charged, it cannot be a lesser offence under a different law. The trial Court had no jurisdiction to have convicted the Appellant of a lesser offence under the Criminal Code. It is a denial of justice to the Appellant to convict the Appellant of an offence under a law different from that under which he was tried, to ensure conviction. Without sentiment, the Court is to decide cases as presented under the law as an adjudicator, it is a different perspective of justice or injustice (whatever the case may be) for the Court to exercise its powers under a different law, different from that utilized by the prosecution, there ought not to be a mind set to convict. In OKOBI VS. STATE (1984) LPELR – 2453 (SC) P. 23, PARAS. A – B, his lordship Obaseki, JSC of the Apex Court held thus:
“It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.”
See, also SALIU VS. STATE (2018) LPELR – 44064 (SC) PP. 32 – 34, PARAS. F – B. In ETIM VS. STATE (supra), this Court held that:
“The phrase ‘lesser offence’ as mentioned in Section 179(1) of the CPL only refers to a lesser offence under the law or Act under which the main or composite offence was charged.”
The law is that where it is intended to convict for a lesser offence, that lesser offence must have been created by the same law governing the substantive offence. In the present case the trial Court found that the Appellant did not obtain the money under false pretence as charged and under which he stood trial. The appellant cannot be righty convicted of a lesser offence of fraudulent conversion pursuant to Section 383(2) (a)(b) and (4) of the Criminal Code Act. The conviction and sentence of the Appellant under the Criminal Code Act cannot be allowed to stand, the Appellant ought to have been discharged and acquitted if the charge against him was not proved. Issue one is resolved in favour of the Appellant. PER UWA, J.C.A
THE OFFENCE OF “CONSPIRACY”
Conspiracy in criminal law was defined in STATE VS. OLASHEHU SALAWU (2011) LPELR – 8252 (SC) PP. 38 – 39, PARAS. E – A, his lordship Muhammad, JSC (as he then was) thus:
“The general definition assigned to the word “Conspiracy”, in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. Burton’s Legal Thesaurus, 4th Edition. In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89, Laws of Northern Nigeria (1963) under which the Respondent was charged, Section 96 thereof defines “Conspiracy” as follows: “(1) when two or more persons agree to do or cause to be done – (a)An illegal act; or (b) An act which is not illegal by illegal means.”
Similarly, defined in KAYODE VS. STATE (2016) LPELR – 40028 (SC) P. 66, PARAS. E – F and POSU & ANOR VS. STATE (2010) LPELR – 4863 (CA) P. 34, PARAS. E –G. PER UWA, J.C.A.
BURDEN OF PROOF IN CRIMINAL TRIAL
In respect of whether the offence of stealing was proved against the , like in any other criminal trial, the burden is on the prosecution to prove its case beyond reasonable doubt. Where that fails, the accused is entitled to an acquittal. See, EDUN & ANOR VS. FRN IN SUIT No: SC. 960/2017(CONSOLIDATED) 21ST FEBRUARY, 2019, OBUE VS. STATE (1976) LPELR – 2195 (SC) P. 9, PARAS. C – D, AJAYI VS. STATE (2013) LPELR – 19941 (SC) P. 43, PARAS. B – C and AGU VS. THE STATE (2017) LPELR – 41664 (SC) P. 25 PARAS. B – C. PER CHIDI NWAOMA UWA, J.C.A
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Federal High Court, Yola delivered on 26/9/19 by B.B. Aliyu, JCA (by Fiat of the President of the Court of Appeal Pursuant to Section 396(7) of the Administration of Criminal Justice Act, 2015) in which the Appellant and the 2nd Respondent were convicted of the offences of conspiracy and stealing contrary to Sections 383 and 518 (6) of the Criminal Code Act, Laws of the Federation of Nigeria, 2004 respectively. The Appellant was sentenced to imprisonment for two years and three years respectively, sentences to run concurrently. The appellant who was dissatisfied with the judgment appealed to this Court.
On the part of the Appellant, the background facts are that the Appellant is a private legal practitioner while the 2nd Respondent is a legal practitioner under the employment of the Judicial Service Commission of Adamawa State. It was made out that the Appellant in his capacity as a legal practitioner entered into a written agreement with some of the staff of a Private Construction Company, Stirling Engineering Nigeria Ltd who had been
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laid off, to institute an action on their behalf against their former employer for unpaid salaries. It was made out that the Appellant was to prosecute the suit with his personal resources and would be entitled to 20% of the judgment sum to be deducted first before his clients receive their share. The Appellant filed the suit and subsequently got judgment in the sum of N128 Million Naira and 2% interest in favour of his clients. Thereafter, the moveable properties of the judgment debtor company were attached and auctioned in the presence of the representatives of the judgment creditors. The proceeds of the auction were given to the Registrar of the High Court of Justice of Adamawa State. The 2nd Respondent released the sum of N5 Million to the Appellant for the judgment creditors. The Appellant made out that he gave the money to the judgment creditors in the presence of the Auctioneer (PW9) but, the Appellant’s clients rejected the amount as it was meagre and said that the Appellant should keep it as part of his professional fees, which the Appellant held back.
The judgment creditors after failed efforts to obtain the balance of the amount realized
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from the auction petitioned to the EFCC against the personnel of the Adamawa State Judiciary over its failure to release the judgment debt to them. The Appellant was invited by the EFCC who made the Appellant write an undertaking that he would return the money paid to him for his clients which his clients asked him to keep as part of his professional fees of N25.6 Million. The Appellant did not return the money to the EFCC who later arraigned him before the Federal High Court for the offences of conspiracy and Advance Fee Fraud.
It was noted that the learned trial judge was transferred out of Yola Judicial Division of the Federal High Court in October, 2017 to Port Harcourt and returned to Yola to preside over the case on 1/2/18 on the Fiat of the Chief Judge of the Federal High Court, after the learned trial judge adjourned the matter on 2/5/18 for judgment, he was elevated to the Court of Appeal and returned to deliver the judgment on 26/9/19 by the Fiat of the President of the Court of Appeal. The judgment was delivered after 511 days, contrary to the 90 days prescribed by Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The following issues were distilled for the determination of the appeal:
1. “Whether the learned trial judge was right to have convicted the Appellant under the Criminal Code Act when he was charged under the Advance Fee Fraud and other Related Offences Act. (Distilled from Ground 2).
2. Whether the Prosecution proved the commission of the offences of conspiracy and stealing beyond a reasonable doubt against the Appellant. (Distilled from Grounds 1, 4, 6, 7, 8, 9 and 10).
3. Whether the learned trial Judge in convicting the Appellant 511 days after he adjourned to deliver judgment, did not lose the impression he had of the evidence of the witnesses and thereby occasioned a miscarriage of Justice. (Distilled from Ground 12).
4. Whether having regard to the fact that the Appellant was arraigned and tried in Adamawa State for offences allegedly committed in Adamawa State, the Trial Court was right to have convicted him of an offence under the Criminal Code Act. (Distilled from Grounds 3 and 5).
5. Whether the sentence of 2 years for conspiracy and 3 years for stealing passed on the Appellant by the learned Trial Judge was not
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excessive.”(Distilled from Ground 11).
The 1st Respondent adopted the issues as formulated by the Appellant.
The 2nd Respondent did not file any brief of argument and had nothing to urge this Court.
In arguing the appeal, the learned Senior Counsel, Joe Kyari Gadzama (SAN) relied on and adopted his brief of argument filed on 4/10/19 and his reply brief filed on 14/1/2020 but, deemed properly filed and served on 9/3/2020 as his argument in this appeal. Issues 1, 2 and 4 were argued together. In summary and in highlighting the issues, it was submitted that the essential ingredients were not met for the conviction of the Appellant, all the evidence was circumstantial which was not compelling, convincing and unequivocal. The learned Senior Counsel faulted the evaluation of evidence by the learned trial judge. It was submitted that there was no conspiracy between the Appellant and the 2nd Respondent, reliance was placed on the case of EDUN VS. FRN (2019) 13 NWLR (PT. 1689) PAGE 326 at 369. It was highlighted that the petition was against the 2nd Respondent and not the Appellant.
In the Appellant’s brief of argument, in arguing issue
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one, it was submitted that the Appellant and the 2nd Respondent stood trial at the lower court on a charge of conspiracy and obtaining money with intent to defraud contrary to Sections 8(a) and 1 (1) (a) of the Advance Fee Fraud and other Related Offences Act, 2006. It was submitted that at the close of the trial, the learned trial judge found that an offence under the Advance Fee Fraud and other Related Offences Act, 2006 was not made out and proceeded to convict the Appellant for conspiracy to steal and stealing under the Criminal Code Act as being a lesser offence which was argued to be a great error on the part of the trial Court. See, OKOBI VS. STATE (1984) NSCC 520 at 528. It was argued that to convict for a lesser offence, it must be under the same legislation whether State or Federal. See, NIGERIA AIRFORCE VS. KAMALDEEN (2007) LPELR – 2010 (SC) and ETIM VS. STATE (2019) 10 NWLR (PT. 1681) 491 at 503. It was argued that the trial Court was wrong to have convicted the Appellant for the offences of conspiracy and stealing under the Criminal Code Act when the Appellant was charged and tried under the Advance Fee Fraud and other Related Offences Act,
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2006.
In arguing issue two, it was submitted that the burden is on the prosecution to prove the case of stealing beyond reasonable doubt. See, GODWIN CHUKWUMA VS. FRN (2011) 13 NWLR (PT. 1264) 391. Further, that if one of the ingredients of an offence with which an accused person is charged is not proved the accused would be entitled to an acquittal. See, AKINLOLU VS. STATE (2013) LPELR – 21876. It was contended that the trial Court was wrong to have convicted the Appellant of the offence of stealing and conspiracy under Sections 383 (2) (a) (b) (4) and 518 (6) of the Criminal Code Act and in alternative argument, without conceding that the trial Court was right, submitted that the essential elements of conversion and fraudulent intention to convert under the law, were not proved by the prosecution. It was argued that the trial Court was wrong to have held that because the Appellant neither returned the money to his client nor the Court the sum of N5 Million paid to him he was guilty of fraudulent conversion of the said amount. It was submitted that the complaint in the petition to the EFCC was not against the Appellant but, rather the Appellant’s
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clients commended his efforts as counsel. It was argued that the evidence of the Appellant at the trial was to the effect that the Appellant’s clients rejected the money and asked him to keep it as part of his fees was not controverted. In alternative argument, it was argued that assuming the money was not part of the Appellant’s professional fee, there was no evidence before the trial Court that a demand was made and the Appellant failed to pay the money to his clients, the money having been paid to him as their counsel. See, OYEBANJI VS. STATE (2011) LPELR – 3765 (CA) PAGE 13, PARAS. B – C. It was submitted that fraudulent conversion was not proved against the Appellant and that there was absence of mens rea in respect of the offence of stealing. See, BAJULAIYE VS. STATE (2012) LPELR – 7995 (CA); BABALOLA & ORS VS. STATE (1989) 4 NWLR (PT. 115) 264.
On conviction for conspiracy, it was submitted that there was no evidence linking the Appellant with the conversion of the sum of N67,154,252.00 for which the 2nd Respondent was convicted. Further, that there was no evidence that the Appellant and the 2nd Respondent agreed
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that the Appellant should keep the N5 Million Naira paid to him as part of his professional fee. It was concluded on this issue that there was no evidence that there was a meeting of the mind of the Appellant and the 2nd Respondent to fraudulently convert the proceeds of the auction sales of the attached goods of the judgment debtors, Stirling Engineering Nigeria Ltd.
In arguing issue three, it was submitted that from the evaluation of the evidence by the trial Court, it is clear that the facts of the case must have escaped the memory of the trial Court in that there was a mix up of the fact which affected the decision. It was argued that the judgment was delivered 511 days after the trial Court deemed the addresses as adopted and adjourned for judgment contrary to the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provided that judgment should be delivered not more than 90 days after final addresses. See, ATUNGWU & ANOR VS. OCHEKWU (2013) 14 NWLR (PT. 1375) 605. It was argued that the delay led to a miscarriage of justice, for instance where the Court alleged that the Appellant failed to
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“raise dust” over the failure of the Registry to release the judgment debt to the Appellant’s clients, which the trial Court termed as collusion with the 2nd Respondent to fraudulently convert the judgment debt. It was submitted that the trial Court lost the impression of the evidence of the PW3 to the effect that the Appellant did raise dust by taking his clients to the Registrar of the High Court to complain also, the contents of the petition to the EFCC to the effect that the Appellant did his best as their counsel to no avail.
In arguing issue four, it was submitted that the Criminal Code Act does not apply to Adamawa State and that an accused person cannot be tried under one law and punished under another of a lesser offence, it should be a lesser offence in the appropriate law, reference was made to Sections 1, 1A and 2 of the Criminal Code Act, Cap C38 Laws of the Federation of Nigeria (LFN) 2004. It was argued that the provisions of the Criminal Code Act do not apply as a Federal Law but, as a State Law in Adamawa State in so far as these are adopted by the State Legislature. Further, that unless stated or allowed by the Penal
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Code (Northern States) Federal Provisions Act, the Criminal Code Act is not applicable where the Penal Code applies. It was argued that the Appellant and the 2nd Respondent who were both resident in Adamawa State ought not to have been convicted under the Criminal Code Act without due regard to the Penal Code (Northern States) Federal Provisions Act, the utilization of the Criminal Code by trial Court was said to have been gross error on the part of the Court. See, STATE VS. OKOYE (2007) 16 NWLR (PT. 1061) 607 at 658 – 659, PARAS. H – C, IBRAHIM VS. NIGERIAN ARMY (2015) LPELR – 24596 (CA). It was concluded on this issue that the trial Court convicted the Appellant under a non-existent or inapplicable Law in Adamawa State.
In arguing his issue five, it was submitted that Exhibit DW4A expressly provided that 20% of the judgment debt of N128 Million would be deducted first from the money to be recovered before any payment to the clients. Further, that the Appellant’s clients who asked him to keep the N5 Million kept to the terms of Exhibit DW4A. See, YAKUBU VS. STATE (2015) LPELR – 40867, ADEYEYE VS. STATE (1968) NMLR 87,
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EKPO VS. STATE (1982) 6 SC 22, IORTIM VS. STATE (1997) 2 NWLR (PT. 490) 711 and OMOKUWAJO VS. FRN (2013) 9 NWLR (PT. 1359) 300. We were urged to commute the Appellant’s sentence to non-custodial, as it would best serve the purpose of the law pursuant to Section 401 (1) of the Administration of Criminal Justice Act, 2015.
In response, the learned counsel to the 1st Respondent, Abubakar Aliyu Esq. relied on and adopted his brief of argument filed on 27/11/19, as his argument in this appeal in urging us to dismiss the appeal and affirm the decision of the lower Court. In arguing the appeal, the learned counsel adopted the issues as formulated by the learned counsel to the Appellant. In arguing the first issue, it was submitted that an accused person could be found guilty of a lesser offence than the one he pleaded to. See, OLADEJO VS. STATE (1994) 6 NWLR (PT. 348), ADAVA & ANOR VS. STATE (2006) VOL. 5 LRC NCC 66 at 76 and SECTION 223 OF THE ADMINISTRATION OF JUSTICE ACT, 2015. It was submitted that the cases cited and relied upon by the learned Senior Counsel supports the case of the 1st Respondent. It was argued that the Court would not set aside a
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conviction of an accused person merely on the basis of having been tried on a repealed law if at the time there was an existing law under which he should have been tried and convicted. See, ADONIKE VS. STATE (2015) 7 NWLR (PT. 1458) 237, at PAGE 258, PARAS. C – G.
Under the second issue, it was submitted that the duty of the prosecution in every criminal trial is to prove the alleged offence beyond reasonable doubt by proof of the essential elements. See, STATE VS. BAKARE (1987) 1 NWLR (PT. 52) 579, NWANKWO VS. FRN (2003) 4 NWLR (PT. 809) 1 and ONAGORUWA VS. STATE (1993) 7 NWLR (PT. 303) P. 49at 85 PARAS. C – D. It was argued that the Respondent proved the essential elements of conspiracy and fraudulent conversion of the sum of N5,000,000.00 (Five Million Naira) against the Appellant. The essential element of conspiracy was given as the agreement followed by an overt act. See, NWANKWO VS. FRN (supra) at P. 37, PARAS. C – D. It was submitted that conspiracy could be inferred or deduced from certain criminal acts of the parties and done in pursuance of an apparent criminal purpose between them. See, STATE VS. SALAWU (2011) 48 NSC QR 90;
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OBIAKOR VS.STATE (2002) 10 NWLR 612, PARA. G, PAGE 628. It was submitted that the conspirators need not know themselves. See, ONYENYE VS. STATE (2012) 15 NWLR (PT. 1324) 586 at PAGE 613, PARAGRAPH D and STATE VS. GWANGWAN (2015) 13 NWLR (PT. 1477) 600, P. 622, PARAS. A – D. It was submitted that the trial Court was right to have found that there was a meeting of the mind of the Appellant and the 2nd Respondent. It was submitted that though the Appellant and the 2nd Respondent converted different sums of money, it was established that they both had the common intention to deprive the judgment creditors of the proceeds of the judgment sum, reference was made to Section 383 (2) (a), (b) and (4) of the Criminal Code Act and ADEJOBI VS. STATE (2011) 12 NWLR (PT. 1261) 347 at 377, PARAS. B – D.
It was further argued that, the Appellant making out that his clients asked him to keep the N5 Million as part of his fees was an afterthought not having said so in his extra judicial statement, Exhibit PW11. See, ONWUDIWE VS. FRN (2006) 10 NWLR (PT. 988) 382 at 427, PARAS.A – B.
In response to issue three, it was submitted that the delay in delivery
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of the judgment beyond the ninety days provided by Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) does not vitiate or nullify the judgment of the trial Court, bearing in mind, Section 294(5) of the Constitution, unless there is proof of a miscarriage of justice. See, AKOMA VS. OSEN-WOKWU (2014) 11 NWLR 462 (SC) at PAGES 488, PARAS. A – B; 496, PARAS. G – H, 510, PARAS. B – C, 518, PARAS. A – B and TOTAL NIG PLC VS. NEW CARGO HANDLING CO. (2015) 17 NWLR PT. 1489, 55 at PAGES 594 – 595, PARAS. B – B.
It was argued that the trial Court explained the reason for the delay, in that a decision of the Federal High Court had struck out Section 396(7) of the Administration of Criminal Justice Act, 2015 as unconstitutional, a decision which was later set aside by the Court of Appeal. It was submitted that the trial judge did not lose impression of the evidence of the witnesses to warrant any miscarriage of justice.
On the fourth issue, it was submitted that there is only one Federal High Court even though divided in several divisions. See,RODA VS. FRN (2015) 10 NWLR (PT. 1468) 427. It
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was argued that the Federal High Court is a creation of statute which prescribed common powers to all the Courts irrespective of the judicial division. It was submitted that the Criminal Code Act under which the Appellant was convicted is a Federal Legislation which is applicable in the Federal High Court. Further, that Section 7(2)(f) of the Economic and Financial Crimes (Establishment Act) 2004, gave the commission power to enforce any law relating to Economic and Financial Crimes, including the Criminal Code and Penal Code, reference was made to Section 46 of the Act and IBORI VS. FRN (2009) 3 NWLR (PT. 1128) 283.
The fifth issue is as to whether the sentence was not excessive? It was submitted that the Appellant was convicted of the offence of conspiracy contrary to Section 518(6) of the Criminal Code Act, which provides two years imprisonment if found liable. Further, that the Appellant was convicted for fraudulent conversion contrary to Section 383 and punishable under Section 390 of the Criminal Code Act, which provides for three years imprisonment if found guilty. It was argued that there was no room for discretion to be exercised by the trial
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Court and the Court could not have given a non-custodial sentence in respect of the Appellant. It was submitted that the Appellate Court is always reluctant to interfere with the way a trial Court exercises its discretion except under certain conditions enumerated by the learned counsel to the Appellant. See, AMOSHIMA VS. STATE (2011) 14 NWLR (PT. 1268) 530, at PAGE 554, PARAS. A – C.
The 2nd Respondent did not file any brief of argument and had nothing to urge.
In reply on points of law, on issue two, it was re-argued that the 1st Respondent did not lead any evidence to prove that there was a meeting of the minds of the Appellant with the 2nd Respondent. See, STATE VS. GWANGWAN (2015) 13 NWLR (PT. 1477) 600 at 622, PARAS. D – F, YAKUBU VS. STATE (2014) 8 NWLR (PT. 1408) 111 at 124, PARA. G. It was submitted that the “mens rea” or the appellant’s criminal intention was not proved. See, AUDU VS. FRN (2018) LPELR – 45642 (CA) at P. 33, PARA. A.
On issue three, it was reargued that the trial Court failed to take into account evidence of the Appellant that was favourable to him in the consideration of the charges
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against him for instance when the petitioners to the EFCC commended the Appellant’s effort to assist them recover their money. It was submitted that the delay in delivery of the judgment made the trial Court forget the commendation. See, STATE VS. USMAN (2004) LPELR – 7438 (CA) at PP. 82 – 83, D – A PP. 84 – 85, PARAS. E – A.
On issue four, it was reargued that the Criminal Code Act is not applicable where the Penal Code applies. Further, that the jurisdiction of the Federal High Court to apply the Criminal Code Act is limited to those offences connected with its exclusive jurisdiction under Section 251 of the 1999 Constitution. See, OLUBEKO VS. FRN (2014) LPELR – 22632 (CA) PAGES 31 – 37, PARAS. F – E. It was the contention of the learned Senior Counsel that the offence of stealing under Section 383 of the Criminal Code Act, under which the Appellant was convicted by the trial Court is outside the jurisdiction of the trial Federal High Court. See, OLUBEKO VS. FRN (supra) at 47, PARAS. B – F; 49 – 50, PARAS. E – A.
On issue five, it was submitted that it is trite law that
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generally, sentencing is a matter at the discretion of the trial Court provided that it is exercised judicially and judiciously within the law. It was submitted that the Appellate Court can interfere with such discretion if the sentencing is excessive. See,ABIODUN VS. FRN (2016) 17 NWLR (PT. 1542) 462 at 514 PARA. C. The exception being where the sentence is mandatory, see, CHIBUZOR VS. FRN (2017) LPELR – 41852 (CA) PP. 15, PARA. C.
I would resolve the issues as distilled by the Appellant and adopted by the 1st Respondent. The Appellant and the 2nd Respondent were arraigned and tried for conspiracy to obtain money under false pretence contrary to Section 8(a) of the Advance Fee Fraud and other Related Offences Act, 2006, that the Appellant with intent to defraud obtained the sum of N5 Million under false pretence contrary to Section 1 (1)(a) of Advance Fee Fraud Act, 2006 and obtaining the sum of N27 Million under false pretence contrary to Section 1 (1)(a) of the Advance Fee Fraud, Act, 2006. I will reproduce the above Sections of the Act for clarity:
Section 1 (1):
“Notwithstanding anything contained in any other enactment or
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law, any person who by any false pretence, and with intent to defraud
(a) Obtains, from any other person, in Nigeria or in any other country for himself or any other person;
Section 8: A person who:-
(a) Conspires with, aids, abets, or counsels any other person to commit an offence;
It is on record at page 798 of the printed records of appeal that at the close of the trial, in its judgment the trial Court found as follows concerning the Appellant:
“He did not obtain the money under any false pretence and indeed he had presented it to the judgment creditors.”
From the above finding, an offence under the Advance Fee Fraud and Other Related Offences Act, 2006 (hereafter referred to as the Act) was not made out by the prosecution. The learned trial judge further held that: “the prosecution proved the lesser offence of fraudulent conversion of N5 Million as defined under Section 383(2)(a), (b) and (4) of the Criminal Code, Act.” The trial Court found that the offence under the Act for which the Appellant stood trial had not been made out or proved by the prosecution. The only option left for the trial
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Court was to have discharged and acquitted the Appellant of the offence for which he was charged and tried, obtaining money with intent to defraud contrary to the Act. The trial Court was wrong to have changed the charge to fraudulent conversion under the Criminal Code which the Appellant was not tried for and proceeded to convict the Appellant in the guise of being a lesser offence that had been proved. It is the law that a Court cannot convict a defendant of a lesser offence unless that offence is under the same law which the defendant has been charged unless; the charge is amended and prosecuted for the lesser offence under a different law covering the lesser offence. For the trial Court to have secured a conviction for a lesser offence, it must be under the law or Act under which the main or composite offence was charged, it cannot be a lesser offence under a different law. The trial Court had no jurisdiction to have convicted the Appellant of a lesser offence under the Criminal Code. It is a denial of justice to the Appellant to convict the Appellant of an offence under a law different from that under which he was tried, to ensure conviction. Without
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sentiment, the Court is to decide cases as presented under the law as an adjudicator, it is a different perspective of justice or injustice (whatever the case may be) for the Court to exercise its powers under a different law, different from that utilized by the prosecution, there ought not to be a mind set to convict. In OKOBI VS. STATE (1984) LPELR – 2453 (SC) P. 23, PARAS. A – B, his lordship Obaseki, JSC of the Apex Court held thus:
“It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.”
See, also SALIU VS. STATE (2018) LPELR – 44064 (SC) PP. 32 – 34, PARAS. F – B. In ETIM VS. STATE (supra), this Court held that:
“The phrase ‘lesser offence’ as mentioned in Section 179(1) of the CPL only refers to a lesser offence under the law or Act under which the main or composite offence was charged.”
The law is that where it is intended to convict for a lesser offence, that lesser offence must have been created by the same law governing the
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substantive offence. In the present case the trial Court found that the Appellant did not obtain the money under false pretence as charged and under which he stood trial. The appellant cannot be righty convicted of a lesser offence of fraudulent conversion pursuant to Section 383(2) (a)(b) and (4) of the Criminal Code Act. The conviction and sentence of the Appellant under the Criminal Code Act cannot be allowed to stand, the Appellant ought to have been discharged and acquitted if the charge against him was not proved. Issue one is resolved in favour of the Appellant.
I would have stopped here since all the other issues are centred around the Appellant’s conviction under the Criminal Code Act, but for whatever it is worth, I would resolve issues 2 – 5 on the merits.
Issue two is whether the prosecution proved the commission of conspiracy and stealing beyond reasonable doubt against the Appellant? The trial Court held that the Appellant and the 2nd Respondent conspired to fraudulently convert the proceeds of the auction sales for their personal use. At pages 612 – 615 of the printed records of appeal, the PW4 (Danladi Mohammed) the
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then Chief Registrar of the Adamawa State High Court testified and tendered some of the auction sale documents amongst which was Exhibit “PW4M” (deposit book), he testified thus:
“I see Exhibit “PW4M” (deposit book) this is the record of monies paid to people who received the money. When there is an attachment the judgment creditor collects money, it is recorded in the deposit book. The 1st entry is OnyiUkaegbu who received 3.5 Million is a lawyer. 2nd entry is also by a lawyer. Eguje was also a practicing lawyer. It is not abnormal for 2nd defendant to collect N5 Million as a lawyer in the case as recorded in this book.”
(underlined mine for emphasis)
From the testimony above, the appellant as counsel to the Petitioners to the EFCC had received the sum of N5 Million from the 2nd Respondent legitimately and the Appellant had endorsed the deposit book as is usually done. It is clear that the 2nd Respondent also released the money to the Appellant officially. There is nothing on record to show that there was any agreement between the Appellant and the 2nd Respondent that the money be paid into the
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Appellant’s personal account. No evidence was led to show that the Appellant and the 2nd Respondent had a common intention that the money would be paid into his personal account before he met with his clients; also that the appellant would retain the money so as not to take up the pursuit of the payment of the balance of the judgment debt. Conspiracy in criminal law was defined in STATE VS. OLASHEHU SALAWU (2011) LPELR – 8252 (SC) PP. 38 – 39, PARAS. E – A, his lordship Muhammad, JSC (as he then was) thus:
“The general definition assigned to the word “Conspiracy”, in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. Burton’s Legal Thesaurus, 4th Edition. In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89, Laws of Northern Nigeria (1963) under which the Respondent was charged, Section 96 thereof defines “Conspiracy” as follows: “(1) when two or more persons agree to do or cause to be done – (a)
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An illegal act; or (b) An act which is not illegal by illegal means.”
Similarly, defined in KAYODE VS. STATE (2016) LPELR – 40028 (SC) P. 66, PARAS. E – F and POSU & ANOR VS. STATE (2010) LPELR – 4863 (CA) P. 34, PARAS. E –G. For a conviction for conspiracy, the prosecution in this case needed to have proved the meeting of the minds of the conspirators (the Appellant and the 2nd Respondent) with a common intention or purpose to commit the fraudulent conversion as charged. Where there is no such evidence, the Court cannot convict for the offence of conspiracy; it cannot be inferred without evidence. At page 807 of the printed records of appeal, the trial Court held thus:
“The moment the 2nd defendant lodged the N5 Million into his personal bank account and proceeded to withdraw it therefrom, the meeting of his mind with the 1st defendant’s to fraudulently divert the proceeds of the auction to their personal use was completed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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I feel safe to infer that the two defendants conspired to fraudulently convert to their personal use the proceeds of the auction against the interest of the judgment creditors in Suit No: ADSY/60M/2007 – KILLYOBAS & 501 ORS. VS. STIRLING CIVIL ENGINEERING NIG LTD. The two defendants are hereby convicted for the offence of conspiracy to convert the proceeds of the auction contrary to Section 518(6) of the Criminal Code Act.”
There was no evidence of the meeting of the minds of the Appellant and the 2nd Respondent for the fraudulent conversion of the proceeds of the auction sales of the attached goods of the judgment debtors and there was no evidence to back up the inference by the trial Court, therefore the above decision is erroneous and cannot stand. The prosecution did not prove the offence of conspiracy against the Appellant.
In respect of whether the offence of stealing was proved against the
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appellant, like in any other criminal trial, the burden is on the prosecution to prove its case beyond reasonable doubt. Where that fails, the accused is entitled to an acquittal. See, EDUN & ANOR VS. FRN IN SUIT No: SC. 960/2017(CONSOLIDATED) 21ST FEBRUARY, 2019, OBUE VS. STATE (1976) LPELR – 2195 (SC) P. 9, PARAS. C – D, AJAYI VS. STATE (2013) LPELR – 19941 (SC) P. 43, PARAS. B – C and AGU VS. THE STATE (2017) LPELR – 41664 (SC) P. 25 PARAS. B – C.
There is no doubt that the Appellant represented and acted on behalf of his clients in pursuit of the auction to recover what was due to his clients. The part payment paid to the Appellant (by the 2nd Respondent) as counsel was to the knowledge of his clients paid into his personal account. The Appellant’s clients did not complain about the money paid to the Appellant which they considered too meagre for them to share. The petition was to the EFCC against the 2nd Respondent in whose custody the bulk of the proceeds of the auction was, which should have been paid to the Appellant’s clients through him as counsel. There was no petition or complaint against the
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Appellant as counsel, if anything his clients acknowledged his efforts put in to recover their money from the proceeds of the auction. Part of the petition stated thus:
“Our counsel Barrister EsthonBinanu also did his best but to no avail.”
In the Appellant’s evidence in Court, he testified that he had not been paid any part of his professional fees and that he financed the case for his clients. Also, that when EFCC officials asked him to return the N5 Million paid to him, he offered to give the EFCC a cheque for the same amount but, they refused and asked for cash, he was asked to give an undertaking which he did but, his clients asked him to keep the money. The prosecution did not controvert these pieces of evidence. It is obvious that if the Appellant had wanted to fraudulently convert the money he would not have offered to issue a cheque of the same sum to EFCC and he would not have reverted back to his clients to inform them of his encounter with the EFCC. Further, a necessary ingredient of fraudulent conversion is that a demand must be made and a refusal to meet up or to comply with the demand. The petitioners did not make any
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demand of the N5 Million from the Appellant and he refused to pay, the said sum having been legitimately paid to the Appellant as their counsel. For the prosecution to succeed there has to be proof of “taking” and “fraudulently.” See, ADEJOBI & ANOR VS. THE STATE (2011) LPELR – 97 (SC) PP. 38 – 39, PARAS. F – B, ABASS VS. FRN & ORS (2018) LPELR – 43695 (CA) PP. 8 – 9, PARAS. G – F, AMAH VS. FRN (2019) LPELR – 46347 (SC) PP. 55 – 56, PARAS. F – C, BABALOLA VS. STATE (1989) 4 NWLR (PT. 115) 264; ONWUDIWE VS. FRN (2006) 10 NWLR (PT. 988) 382 and OYEBANJI VS. STATE (2015) LPELR – 24751 (SC).
The 1st Respondent at the trial failed to establish the criminal intention of the Appellant before he was convicted by the trial Court, the Appellant’s good will which the petitioners (his clients) to EFCC acknowledged by commending the Appellant’s effort to recover their money, the fact that he had not been paid any part of his professional fees and he still pursued the matter on behalf of his clients is enough to negate any criminal intention and I agree with the
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submission of the learned Senior Counsel along these lines. The prosecution failed to prove the offences of conspiracy and stealing beyond reasonable doubt against the Appellant. Issue two is resolved in favour of the Appellant.
On issue three, it is on record that on 2/5/18, the Appellant as 2nd defendant before the trial Court closed his case and the trial Court ordered that addresses be filed and exchanged within two weeks on each side and five days for final reply on points of law, the learned trial judge on that day, deemed the addresses adopted and the case was adjourned to 27/6/18 for judgment. On 19/9/19, hearing Notices were issued against 25/9/19 for judgment. In its judgment, the trial Court gave reasons why the long delay in the delivery of the judgment, contrary to the provisions of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is noteworthy that failure to comply with subsection one above is not enough to vitiate the judgment delivered outside the 90 days provided under the Section unless, a miscarriage of justice was occasioned, in line with Section 294(5) of the Constitution. As rightly argued
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by the learned Senior Counsel, a miscarriage of justice would be occasioned where the trial Court loses the impression created by the witnesses while testifying due to the delay in delivery of the judgment, in the present case 511 (Five Hundred and Eleven) days, long after one year from when the addresses were deemed adopted by the trial Court on 2/5/18. I am at one with the argument that the trial Court had lost track of the evidence of the witnesses when the Court found that the 1st and 2nd Defendants (now Appellant and 2nd Respondent) fraudulently converted various sums of money belonging to the judgment creditors for their personal use because the Appellant did not “raise any dust” when the 2nd Respondent did not pay the auction proceeds to the Appellant’s clients, page 805 of the printed records of appeal. To the contrary, at pages 610 – 611 of the printed records of appeal, the PW3 (Jamilu Umar) one of the Appellant’s clients and a former staff of the judgment debtors testified thus:
“We engaged 2nd defendant to represent us and recover our money from Stirling on behalf of 500 workers whom we represent. We did not
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have any money to pay him at the time but we had an agreement with him that if we get judgment, we will pay him. We signed an agreement to that effect all the four of us …
I knew 2nd defendant was our lawyer. It is correct when we complained about our money 2nd defendant took us to the Chief Registrar of the High Court.”
From the testimony above, the Appellant as counsel to the judgment creditors had a cordial relationship with his clients and had reached an understanding concerning his professional fees which had not been paid as at the time the auction sale was carried out. After the auction, when his clients complained to him about non-payment of the proceeds of the auction sale in custody of 2nd Respondent, the Appellant took them to the chief Registrar of the High Court to lodge their complaint. It cannot be rightly said that the Appellant did not raise any dust or did nothing when the 2nd Respondent failed to pay them the
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proceeds of the auction sale, the Appellant was neither silent nor dormant, he made a move to a high authority within the High Court Registry to complain about the non-payment, he need not have screamed and shouted to prove that he reacted to the non-payment.
Further, the petition to the EFCC was against the 2nd Respondent, in the petition, concerning their counsel, the Appellant stated thus:
“Our counsel Barrister Esthon Binanu also did his best but to no avail.”
The learned trial judge also overlooked this statement by the Appellant’s clients in the petition, the fact that the Appellant had put in his best to ensure the recovery of his client’s money. I hold that the long delay affected the trial Court’s impression of the evidence on record and this led to a miscarriage of justice. See,AKOMA & ANOR VS. OSENWOKWU & ORS (2014) LPELR – 22885 (SC) PP. 79 – 80, PARAS. G – C; (2014) 11 NWLR (PT. 1419) P. 462; (2015) ALL FWLR (PT. 784) P. 27. I resolve issue three in favour of the Appellant.
The fourth issue is whether the trial Court was right to have convicted the appellant in Adamawa
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State under the Criminal Code Act? It is apt at this point to start with the provisions of the law under which the Appellant was convicted and the extent of its applicability as rightly highlighted by the learned Senior Counsel. Section 1 and 1A provide as follows:
1. (1) “This Act may be cited as the Criminal Code Act 1A. Savings in respect of Northern States the provisions of this Act shall take effect subject to the provisions of the Penal Code (Northern States) Federal Provisions Act. (Cap. P3).” From the above provisions, the Criminal Code Acts operates subject to the Penal Code which simply means that unless provided for or allowed by the Penal Code (Northern States) Federal Provisions Act, the Criminal Code Act would not be applicable where the Penal Code applies. Adamawa State being a Northern State in Nigeria, obviously it is the Penal Code law that would apply as a state Law and not the Criminal Code Act. Further, it is worthy of note that by Sections 3 and 6 of the Penal Code (Northern States) Federal Provisions Act the applicability of the Criminal Code Act to the Northern States was repealed. The offences for which the
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appellant was tried and convicted were allegedly committed in Adamawa State where the Appellant and the 2nd Respondent were both resident. The Appellant was erroneously convicted under the Criminal Code Act Cap C38, Laws of the Federation, 2004 which is not applicable in Adamawa State, in the Northern Part of Nigeria. I hold that the trial Court was wrong to have convicted the Appellant in Adamawa State under the Criminal Code Act which is not the applicable law, the Penal Code applies. The fourth issue is resolved in favour of the appellant.
In the fifth issue, the Appellant challenged his sentence of two years for conspiracy and three years for stealing alleging that it is excessive considering the evidence led at the trial. Having held that the Appellant ought not to have been convicted under the Criminal Code Act, the issue of sentence would therefore not arise but, for whatever it is worth I would, look into the sentence imposed on the Appellant. It is on record that the Appellant took up and prosecuted his client’s case with his finances and was to be paid his professional fees from the proceeds on successful conclusion of their case. The
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Appellant’s clients testified to the effort the Appellant had put in to help them recover their money from the judgment creditors and subsequently from the 2nd Respondent’s office. Further, the Appellant’s clients had no grouse against him, otherwise he would have been mentioned in their petition to the EFCC. The relationship of counsel and clients still existed between them without any doubt or complaint against the Appellant who had fought their case to conclusion, self financed. All these ought to have worked on the mind of the trial Court in passing sentence and to have exercised his discretion in favour of the Appellant by giving a reduced sentence considering the circumstances of this case as long as the discretion is judicially and judiciously within the law. The sum of N5 Million was collected on behalf of the Appellant’s clients as part payment of the judgment debt and his clients had agreed to settle his professional fees (which had not been paid) from the proceeds of the auction which he collected on their behalf. The offences for which the appellant was tried, convicted and sentenced are not capital offences where the
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sentences are mandatory or a minimum is prescribed, where the Court would have no power to reduce such sentences. That is not the case here and this Court can rightly interfere with the sentence which in my humble view is excessive, there is nothing on record to show that the Appellant is not a first offender or that he had in the past been found wanting as counsel. See, OSAYOMI & ORS VS. STATE (2006) LPELR – 7730 (CA) PP. 37 – 39, PARAS. A – D and IBRAHIM VS. STATE (2018) LPELR – 45967 (CA) PP. 21 – 24, PARAS. A – D. Issue five is resolved in favour of the Appellant. I would and do alter the sentence to a refund of the sum of N5 Million to the judgment creditors, in addition, a fine of N100,000.00 (One Hundred Thousand Naira).
Having resolved all the issues in favour of the Appellant, the Appeal succeeds and it is hereby allowed. The judgment of the trial Federal High Court delivered on 26th September, 2019 in charge No: FHC/YL/103C/2015 in respect of the Appellant is hereby set aside. Instead, the Appellant is discharged and acquitted.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance
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in draft the lead judgment just delivered by my learned brother, Chidi Nwaoma Uwa JCA. My learned brother has dealt exhaustively with the issues for determination in the appeal. I adopt the reasoning and conclusions in the lead judgment as mine and also allow the appeal.
The conviction and sentence of the Appellant by the Court below are hereby quashed and the Appellant discharged and acquitted.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Joe kyari Gadzama, SAN with him, Chief Leornard Daniel Nzadon, Esq., E.O. Odo Esq., Abubakar Sa’ad Esq., N. N. Wayeh, Esq., and Hindimo Omeh, Esq.,
Abubakar Aliyu, Esq. for 1st Appellant For Appellant(s)
M.P. Atsev, Esq. for 2nd Respondent For Respondent(s)
